Social Media and the In-House Counsel

Social media plays an increasingly significant role in the US healthcare system. According to a recent poll, the average American spends more than 52 hours per year on the Internet looking for health information, but only visits the doctor three times per year. While 53% of users rely on the health information hub WebMD, others rely on more general social media sites like YouTube (12%) and Facebook (10%). Only 9% of Internet users rely on pharmaceutical companies' sites for information.

In light of the growing influence of social media, pharmaceutical companies may be considering their options when it comes to such interactions. But for these organizations, entering the social media scene is not as simple as just creating a Facebook page or learning how to tweet in 140 characters or less. Rather, social media poses a regulatory and litigation maze that must be carefully navigated. Here, we provide some insight into the most pressing questions companies are, or should be, asking about social media.

1. Should my company increase its social media presence?

Most pharmaceutical companies have only a limited presence on social media sites. In fact, according to a study released by the IMS Institute for Healthcare Informatics, "among the 50 largest [pharmaceutical] companies, half still do not use social media to engage consumers or patients." And "only 10 of the top drugmakers have availed themselves of all three of the most widely used social media channels—Twitter, Facebook, and YouTube." Some companies have Facebook pages but include no product information on them, and many explicitly inform visitors to their Facebook pages that any comments mentioning products may be deleted.

Yet, pharmaceutical companies are the logical source for the most current information about a particular product. The lack of clear regulatory guidelines may be part of the reason companies have been reticent to broaden social media interactions with patients.

Companies may want to increase their social media presence for many reasons beyond marketing, not the least of which is to provide the public with clear, unified information on the company and its products. In the absence of information directly from the company on an official or authorized social media page, companies may be able to do little to counteract potential misinformation arising out of the growing amount of anecdotal information available through mainstream social media sites. This could give rise to reputational harm that companies can do little to address after the fact.

2. Does my company's Facebook and other social media presence provide fair balance?

Recent FDA activity, including the agency's letters to Institut Biochimique (IBSA) and Akrimax Pharmaceuticals and to Amarc Enterprises teach us that the FDA is indeed watching what pharmaceutical companies post on social media sites and is continuing to enforce existing advertising guidelines, including fair balance. Companies have struggled with finding ways to meet those requirements on these new platforms, and FDA has provided only limited regulatory guidance thus far. While it is still very unclear what makes for best practices in this space, once can safely assume that until there is new guidance, companies will need to provide the same fair balance information about potential risks and side effects in every posting as they would in any other marketing context.

FDA has not yet provided any indication that the fundamental fair balance rules will change as social media changes. However, guidelines are expected this year to provide guidance on "Presenting Risk and Benefit Information for Prescription Drugs and Medical Devices" on social media platforms "with Character Space Limitations."